from the that's-a-problem dept

We didn't cover anything about the whole bogus story that Rolling Stone published last year about campus rape at UVA, which it later had to retract and take down. The whole thing was something of a clusterfuck, but not directly relevant to what we write about here. Eventually, it led to a defamation case filed by UVA's former associate dean, Nicole Eramo, against Rolling Stone, which was pretty interesting and resulted in a somewhat surprising loss for Rolling Stone. As we've discussed plenty of times, winning a defamation lawsuit -- especially against a public figure -- is particularly difficult (and that's a good thing). The actions need to be particularly egregious. And, in this case, the jury decided that they were. I'm certainly not going to defend Rolling Stone and its ridiculously shoddy reporting, which seemed to be confirmation bias piled upon confirmation bias.

But as some quickly pointed out, the verdict could have some serious chilling effects on media organizations -- in part because the jury found that the originally updated version of the story -- as the details reported began to crumble -- and which included an editor's note apologizing for problems with the original reporting, was viewed by the jury as a republication, and, even worse, it was that "republication" that met the "actual malice" standpoint needed to get over the defamation bar.

This is problematic.

It was the original reporting that was bad. The apology was good. Yet, the way the jury ruled, Rolling Stone would have been better off not apologizing for the error and not adding the editor's note to the story. That seems crazy. And thus, the Reporters Committee for Freedom of the Press (RCFP) and eight big media organizations (including the Washington Post, who was the publication that first exposed many of the problems in the Rolling Stone article) have filed an amicus brief with the court raising this issue (found via Eriq Gardner's excellent reporting at THREsq).

The argument is pretty straightforward. Creating a chilling effect on correcting stories and apologizing for errors is really, really bad.

Journalists have always had a commitment to ethical standards by assuming responsibility for their errors and setting the record straight. Being accountable to the public by updating stories as needed is one way to reassure readers that the news media are dedicated to accuracy in their reporting. As proof of the power of corrections and their contribution to reputable journalism, a 1998 study conducted by the American Society of Newspaper Editors found that 63 percent of newspaper readers “‘feel better’ about the quality of the news coverage” when there are corrections....

[....]

In the case of news published on the Internet, the news media can more quickly and meaningfully provide more in-depth modifications and updates than in the traditional print context. An explanation of a mistake can be made at any time in the same place as the original article, where the same audience is more likely to see it. In addition, “[d]igital publishing has made it possible for editors not only to scrub or enhance stories as they develop but also to pull back the curtain – to make sure readers see and understand what they’ve done.”...

[....]

Numerous high-profile examples show that the tradition that has developed in online journalism is to leave a controversial story on the website while noting the problems with it. Adding an explanation by no means indicates that the publishers are supporting, reaffirming, or republishing the facts of the original story. On the contrary, they are preserving the record of what was previously written while adding greater context

Indeed, this is the same policy we take at Techdirt. In the cases that we've made serious mistakes in our reporting, we leave up the original, but with a prominent correction and apology. That shouldn't be seen as a "republication" and an admission that the republication was malicious. That's clearly a bogus interpretation and very problematic. It's much, much worse to simply disappear an article with errors or problematic reporting, because that's hiding things, rather than being more open and transparent. We make fun of the publications that simply disappear such stories.

Because correcting false statements in an article, even short of retracting the entire article, will often be considered a mitigation of damages or evidence of lack of malice, responding to new information and posting updates are clearly encouraged by courts and seen as a positive act. Allowing the attachment of an editor’s note to the original article, which backs away from claims in that publication, to constitute a “republication” is thus inconsistent with clear public policy interests in encouraging greater explanation as stories develop.

Hopefully the court reconsiders this issue -- otherwise, one hopes that an appeals court, or even the Supreme Court will take up this issue on appeal down the road. Publications shouldn't be punished for admitting to mistakes. That would seem to go against all common sense.

from the stop-impersonating-us dept

Last fall, we wrote about how the FBI had set up a fake AP news story in order to implant malware during an investigation. This came out deep in a document that had been released via a FOIA request by EFF, and first noticed by Chris Soghoian of the ACLU. The documents showed the FBI discussing how to install some malware, called a CIPAV (for Computer and Internet Protocol Address Verifier) by creating a fake news story:

It later came out that the way the FBI used this was an undercover agent pretended to be an AP reporter and sent the suspect -- a 15 year old high school kid... -- a "draft" of the article to review. And when the kid opened it, the malware was deployed.

In response to this, FBI director James Comey defended the practice, saying that it was legal "under Justice Department and FBI guidelines at the time" and, furthermore, that this bit of deception worked. Comey also said that while guidelines had changed, and such impersonation would require "higher-level approvals," it was still something the FBI could do.

The AP has now sued the FBI, along with the Reporters Committee on Freedom of the Press (RCFP) over its failure to reveal any more details about this effort following a FOIA request. For reasons that are beyond me, even though it's the AP filing the lawsuit and the AP writing about the lawsuit, reporter Michael Biesecker apparently doesn't think its readers can handle the actual filing, so they don't include it (this is bad journalism, folks). However, you can read the actual lawsuit here.

In short, the AP made a FOIA request for documents related to this specific case above, as well as "an accounting of the number of times" that the FBI "has impersonated media organizations or generated media-style material" to deliver malware. The FBI said it was working on it, and then bizarrely told the AP that the request was being "closed administratively" because it was being combined with someone else's FOIA request, which left the AP reasonably confused, since they had not initiated that request and had no idea who had.

In a letter from Mr. Hardy dated December 10, 2014, the FBI stated that, even
though the request had yet to be fulfilled, the AP Request was unilaterally “being closed
administratively,” because the “material responsive to your request will be processed in FOIA
1313504-0 as they share the same information.”

The combining of Mr. Satter’s request with Request No. 1313504-0 occurred
despite the fact that Mr. Satter had not filed Request No. 1313504-0 and was given no
information about the identity of the requester underlying FOIA Request No. 1313504-0.

When the AP asked the FBI for more info, it was told that "the estimated completion time for large requests is 649 days." And still refused to reveal who had sent in the other FOIA request. The AP filed a formal appeal, and a week ago was told that there was nothing to appeal because the FBI had not completed Request No. 1313504-0 (which, again, the AP had not actually sent in). Hence the lawsuit.

The RCFP FOIA request received a somewhat more standard "no responsive records" response, to which the RCFP pointed out that the FBI was clearly lying, given that the earlier response (to the EFF FOIA, which kicked off this whole thing) showed that there was, in fact, such responsive results (I know this experience all too well).

And thus, both organizations are now suing to force the FBI to actually turn over the damn documents. Can't wait to find out all the national security reasons (or will they be redacted) for why the FBI won't respond, and why it combined the AP's FOIA request with some totally unknown party's.

The Reporters Committee for the Freedom of the Press (RCFP) recently filed an amicus brief in this case on the EFF's behalf, arguing that the non-disclosure demands of NSLs are a form of prior restraint, something that is clearly unconstitutional. It also notes the chilling effect this has had on journalism.

The information at issue is not just important for its own sake, but because, as recent reports have shown, fear of government surveillance has deterred confidential sources from speaking to journalists about a wide range of topics. The brief emphasizes that more knowledge about the NSL program can give sources and reporters confidence that their communications are confidential.

The government's desire for secrecy extends even further than the NSLs' gag orders. This secrecy has now spilled over into what would normally be the public's domain.

The Electronic Frontier Foundation’s challenge involves three cases, all of which are under seal. The Reporters Committee was required to file its briefs under seal, but submitted a motion to the Ninth Circuit asking it to unseal its brief.

Whatever the government's stated reasons for requiring the brief to be filed under seal, it's clearly wrong.

“The Court cannot constitutionally seal this brief,” the Reporters Committee wrote in the motion. “Amici have had no access to confidential materials in the case; the brief only includes information that is already public; and there are clear public policy reasons for requiring that the materials be open.”

The government doesn't know when to quit. It's sealed brief requirement makes about as much sense as government agencies' initial reactions to the first few leaked NSA documents -- instructing their employees to not look at publicly-available information because the documents were supposedly still "classified." As if that designation made any sense under the circumstances.

This is the same sort of reasoning: NSLs are super-secret and therefore, anything related to these should be withheld from the public, even if the brief contains nothing more than publicly-available information.